I am due to speak to the Massey University Politics Club next Wednesday. I have today written this letter to the Massey Vice-Chancellor. Her decision to ban Don Brash from speaking on campus is highly likely to be unlawful and absolutely outrageous. Below is my full letter.
Dear Professor Thomas
I am writing to you about your recent decision to ban former National Party Leader and Reserve Bank Governor Dr Don Brash from speaking at Massey University’s Palmerston North campus at an event arranged by the University’s Politics Club.
I have also been invited to speak to the club and my talk has been arranged for next Wednesday 15 August.
Freedom of expression in New Zealand is protected in law by section 14 of the Bill of Rights Act. As Justice Anderson, as he then was, famously put it in Hosking v Runting, “Freedom of expression is the first and last trench in the protection of liberty”. The right has been described by the New Zealand Court of Appeal as being “as wide as human thought and imagination.” These quotes encapsulate the protections long given by the common law to free speech, also now protected in international and domestic human rights instruments.
Universities have traditionally been regarded as bastions of free speech and critical thought. In particular, section 162 of the Education Act 1989 recognises the special role of universities as “critic(s) and conscience(s) of society”, while section 161 specifically protects:
the freedom of academic staff and students, within the law, to question and test received wisdom, to put forward new ideas and to state controversial or unpopular opinions.
With this background, your reported comments outlining your rationale for stopping Dr Brash from speaking give me extreme cause for concern and I strongly urge you to reconsider your decision.
Let me take each of your reported statements in turn.
First, you have stated that “you support free speech on campus” but “the views expressed by members of Hobson’s Pledge, which Dr Brash supports, came dangerously close to hate speech.”
It is hard to know where to start on this somewhat nonsensical statement. Hate speech in New Zealand is traditionally regarded as being prohibited by sections 61 and 63 of the Human Rights Act 1993. If Dr Brash breaches those sections presumably he will be prosecuted under those sections. You essentially have chosen to appoint yourself as the arbiter of what speech qualifies as “hate speech” and what speech does not; replacing a careful objective judgment by a court with a subjective judgment by yourself.
In any event, even by your own admission you accept that Dr Brash only comes “close” to hate speech. If Dr Brash is not expressing “hate speech” (and absent a court order to that effect you have no way of knowing), then what is the rationale for his ban?
The views of the Hobson’s Pledge group, which you assert Dr Brash supports, are admittedly controversial but no more controversial than many other contentious issues of debate in New Zealand society. I put it to you that they no more qualify as hate speech any more than comments by prominent politicians like “two wongs don’t make a white” and well-publicised remarks that blame high house prices on people with “Chinese-sounding names.”
Secondly, you have also said that “whether those views [Hobson’s Pledge] would have been repeated to students in the context of a discussion about the National Party may seem unlikely, but I have no way of knowing.”
Extraordinarily, by your own admission you actually have no idea what Dr Brash actually proposed to say at his address (and even admitted Hobson’s Pledge-esque views “seem[ed] unlikely”, but have gone ahead and cancelled the speech anyway. This is akin to prior restraint on speech which liberal democracies have rightly viewed with considerable distaste. While this is not totally analogous; the courts have traditionally been extremely reluctant to restrain speech prior to publication; for the very good reason that it “is a drastic interference with freedom of speech and should only be ordered where there is a substantial risk of grave injustice.”
Third, you comment that Hobson’s Pledge views are “certainly not conducive with the University’ strategy of recognising the values of a Tiriti o Waitangi-led organisation.” That view is certainly arguable, but most importantly I note you have made no attempt to balance the university’s commitment to the values of the Treaty of Waitangi with your obligations to protect freedom of expression under the Bill of Rights Act and your obligations under the Education Act 1989. No alleged commitment to “values” or cant about health and safety can trump statutory obligations.
Fourth, you claim that “Mr Brash’s leadership of Hobson’s Pledge and views he and its supporters espoused in relation to Māori wards on councils was clearly of concern to many staff, particularly Māori staff”. I appreciate and acknowledge that that is likely to be the case; but there are many instances in life in which people see and hear expression they disagree with. That is part and parcel of living in a liberal democracy. It is also worth noting that a great many New Zealanders also share Dr Brash’s views around Māori wards on Councils. New Zealanders are entitled to hold those views, in the same way that Dr Brash is entitled to express them.
Fifth, you appear to have banned Dr Brash on the basis that protests against him could have led to violence. In some ways this is the most outrageous comment you have made on behalf of the university, essentially applying a thugs’ veto to free speech. If speeches are to be cancelled after the threat of illegal violence by protestors against that speech; then surely you must see that the incentive is for violence to be threatened in order to for speech to be banned. The right response surely from public institutions, particularly universities, in circumstances like that is not to cowardly cancel speech on the grounds of “public safety” but stand firm in favour of the values of pluralistic democracy and diversity of opinion. Few things, if any, are more important than those values.
Finally, your actions are highly likely to be in breach of your statutory obligations. I have already mentioned the Bill of Rights Act 1990 and the Education Act 1989. Section 57, reproduced below, of the Human Rights Act 1993 is also relevant (emphasis mine).
57 Educational establishments
(1) It shall be unlawful for an educational establishment, or the authority responsible for the control of an educational establishment, or any person concerned in the management of an educational establishment or in teaching at an educational establishment,—
(a) to refuse or fail to admit a person as a pupil or student; or
(b) to admit a person as a pupil or a student on less favourable terms and conditions than would otherwise be made available; or
(c) to deny or restrict access to any benefits or services provided by the establishment; or
(d) to exclude a person as a pupil or a student or subject him or her to any other detriment,—
by reason of any of the prohibited grounds of discrimination.
(2) In this section, educational establishment includes an establishment offering any form of training or instruction and an educational establishment under the control of an organisation or association referred to in section 40.
21 Prohibited grounds of discrimination
(1) For the purposes of this Act, the prohibited grounds of discrimination are:
The precedent you have set with your decision is extremely worrying and I urge you to reconsider it. The widespread outrage your decision has created should give you pause for thought.
I am due to speak at the university next Wednesday. It would seem hypocritical for me to cancel a speech in protest at your university’s seeming lack of commitment to free speech, and I am loathe to do so. However I have no real desire to speak at a university that prefers to preference the views of a tiny, angry minority who wish to shut down speech they disagree with rather than stand-up for academic freedom, critical thought, and the values of pluralism and liberal democracy.
I look forward to your reply.
MP for Hutt South
An excellent letter.